Citation Nr: 0315728
Decision Date: 07/11/03 Archive Date: 07/17/03
DOCKET NO. 97-33 132 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUE
Entitlement to service connection for a claimed disability
manifested by right testicular pain.
ATTORNEY FOR THE BOARD
C. Crowley, Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to
December 1994.
This case comes to the Board of Veterans' Appeals (Board)
from an April 1997 decision of the RO in Columbia, South
Carolina. The RO in Atlanta, Georgia, now has jurisdiction
over the case, and that office most recently forwarded the
appeal to the Board following a prior remand in February
2000.
Although the veteran initially requested a hearing at the RO
before a Member of the Board (Veterans Law Judge (VLJ)), he
failed to appear for his hearing in August 1999. And he has
not contacted VA during the several years since to explain
his absence or request that his hearing be rescheduled.
So the Board deems his request for a travel Board hearing
withdrawn. 38 U.S.C.A. § 20.704(d) (2002).
FINDINGS OF FACT
1. The RO has expended sufficient efforts to obtain all
relevant evidence necessary to decide the claim on appeal.
2. The veteran has repeatedly and completely frustrated the
appellate process by his failure to cooperate with VA in the
gathering of evidence necessary to process his claim or
establish his entitlement to the benefit at issue.
CONCLUSION OF LAW
Service connection for a claimed disability manifested by
right testicular pain is precluded by law. 38 U.S.C.A.
§§ 5103, 5103A, 5107, (West 2002); 38 C.F.R. §§ 3.158 (2002);
Morris v. Derwinski, 1 Vet. App. 260 (1991); Wood v.
Derwinski, 1 Vet.App. 190 (1991); Kluttz v. Brown, 7 Vet.
App. 304 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
Congress recently modified or clarified VA's duties to notify
and assist claimants with the passage of the VCAA, Pub. L.
No. 106-475, 114 Stat. 2096 (2000). This change in the law
is applicable to all claims filed on or after the date of its
enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. VCAA, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000). See, too, Karnas v. Derwinski, 1 Vet. App. 308, 312-
13 (1991). The VCAA is codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, and 5107 (West 2002), and the implementing
regulations are found at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2002).
The VCAA requires, in part, that VA notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim-
where at least a substantially complete application has been
submitted. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion of the evidence is to be provided by
the claimant and which part, if any, VA will attempt to
obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a).
See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
VA's duties pursuant to this new law, where triggered, have
been fulfilled. In each instance, as it became apparent that
there may be any information or medical or lay evidence, not
previously provided to VA, that may have been necessary to
substantiate the veteran's claim, VA notified the veteran
both of the necessary information, and also of which evidence
he was to submit, and which evidence VA would attempt to
obtain on his behalf. The RO did this in numerous notice
letters to the veteran. In particular, the RO notified him
both in the February 2000 remand and in the April 2003 VCAA
notice letter what was specifically required of him, and what
VA would do on his behalf.
The veteran not only failed to respond to the RO's request to
provide additional evidence, he failed to respond at all. In
such cases, the U.S. Court of Appeals for Veterans Claims
(Court) has held that we need not consider whether VA's duty
to assist requires that VA do more, because the veteran never
even responded to VA. Morris v. Derwinski, 1 Vet. App. 260
(1991) (VA never able to adjudicate claim because appellant
failed to respond to VA's request for evidence. Section
3.158(a) was specifically promulgated to address this point
by deeming that claimants who fail to respond to requests for
evidence within one year are deemed to have abandoned their
claim.)
The evidence also shows the veteran was notified of the RO's
rating decisions and received a statement of the case (SOC)
and supplemental statements of the case (SSOCs) during the
course of his appeal. When considered collectively,
they apprised him of the type of evidence needed to
substantiate his allegations-and prevail, and of the
governing laws and regulations. Thus, the RO also notified
him of what the evidence must show. And although his recent
mail was returned to VA as undeliverable, that was only
because he has failed to keep VA apprised of his current
address. So VA has satisfied its duties and
responsibilities, to the extent possible. See, e.g., Davis
v. Principi, 17 Vet App 29 (2003) (in order to rebut the
presumption of administrative regularity in VA mailings and
notices, the veteran must establish both that the mailing was
returned as undeliverable and that there were other possible
and plausible addresses available to VA where he could be
located).
Because no additional evidence has been cited by the veteran
as being available, but absent from the record, the Board
finds that any failure on the part of VA to further notify
him what hypothetical evidence would be obtained by VA and
what evidence would be obtained by him is harmless. See
Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Of
course, an error is not harmless when it reasonably affects
the outcome of the case. ATD Corp. v. Lydall, Inc., 159 F.3d
534, 549 (Fed.Cir. 1998). Here, though, there is not a
scintilla of evidence that any failure on the part of VA to
further comply with the VCAA reasonably affects the outcome
of this case. Hence, the Board finds that any such failure
is inconsequential. While perfection is an aspiration, the
failure to achieve it in the administrative process, as
elsewhere in life, does not, absent injury, require a
repeat performance. Miles v. M/V Mississippi Queen, 753 F.2d
1349, 1352 (5th Cir. 1985).
Additionally, the VCAA and implementing regulations also
eliminate the requirement that a veteran submit evidence of a
well-grounded claim, and provide that VA will assist him in
obtaining evidence necessary to substantiate his claim-but
that VA is not required to provide assistance to him if there
is no reasonable possibility that it would aid in
substantiating his claim.
The Board determined in February 2000, prior to remanding the
case to the RO, that the veteran's claim was at least well
grounded. So the VCAA's elimination of this requirement was
and is of no real significance in this particular appeal.
Concerning this duty to assist, a very recent decision by the
U.S. Court of Appeals for the Federal Circuit discusses what
the Board, itself, may do in developing claims and what,
instead, must be done by the RO as the agency of original
jurisdiction over the case. See Disabled American Veterans
v. Secretary of Veterans Affairs, 327 F.3d (Fed. Cir. 2003)
(holding notice provision contained in 38 C.F.R. § 19.9(a)(2)
invalid, as it operates with 38 C.F.R. § 20.1304, as contrary
to 38 U.S.C.A. § 7104(a), and also invalidating the language
of 38 C.F.R. § 19.9(a)(2)(ii), as contrary to the specific
time limit provided in 38 U.S.C.A. § 5103(b)(1)); compare
Janssen v. Principi, 15 Vet. App. 370 (2001) (per curiam)
(appellant represented by counsel presumed to be versed in
facts and applicable law may waive consideration on appeal of
any notice and duty-to-assist rights pursuant to 38 U.S.C.A.
§§ 5103 and 5103A).
VA's General Counsel since has issued a precedent opinion in
response to the holdings in the DAV case. See VAOPGCPREC 1-
2003 (May 21, 2003). Briefly stated, VA's General Counsel
held that: the Board retains the authority to develop
evidence in an appeal, but may not decide the appeal absent a
waiver of originating agency consideration; the Board has the
authority to obtain such waivers; the Board has the authority
to issue "VCAA letters," subject to the limitations set
forth in the Federal Circuit Court's decision; and BVA
is not required to identify and readjudicate appeals decided
under the "development regulations" in effect prior to May
1, 2003. Because the Board did not develop evidence in this
case, (rather, the RO did, including after the Board remanded
this case in February 2000), the holdings in the DAV case are
inconsequential too.
The RO obtained the veteran's service medical records and, to
the extent possible, his post-service medical records. The
RO was unable, however, to obtain a medical opinion pursuant
to the Board's remand, due to the veteran's failure to keep
VA apprised of his current address. 38 U.S.C.A. § 5103A(d).
In conclusion, under these circumstances, where the veteran
has completely failed to cooperate, VA could not reasonably
have done more. See generally, Kluttz v. Brown, 7 Vet. App.
304 (1994). Thus, there is no reasonable possibility that
additional action on VA's part would aid in substantiating
the claim. Therefore, further development and further
expending of VA's resources is simply not warranted in this
case.
II. Entitlement to service connection for a claimed
disability
manifested by right testicular pain.
In order for VA to process claims, individuals applying for
benefits have a responsibility to cooperate with the agency
in the gathering of the evidence necessary to establish
allowance of benefits. Morris v. Derwinski, 1 Vet. App. 260
(1991).
Further, Congress has given the Secretary the authority "to
make all rules and regulations which are necessary or
appropriate to carry out the laws administered by [VA] and
are consistent therewith, including regulations with respect
to . . . the method of taking and furnishing [evidence] in
order to establish the right to benefits under such laws.
Pursuant to this authority, the Secretary has promulgated
§ 3.158(a) which provides:
where evidence requested in connection
with an original claim, a claim for
increase or to reopen . . . is not
furnished within 1 year after the date of
request, the claim will be considered
abandoned. After the expiration of 1
year, further action will not be taken
unless a new claim is received. Should
the right to benefits be finally
established . . . compensation . . .
based on such evidence shall commence not
earlier than the date of filing the new
claim.
Morris v. Derwinski, 1 Vet. App. 260 (1991) (citing 38 C.F.R.
§ 3.158 (a)).
In July 2002, cross-references in 38 C.F.R. § 3.158(a) and
(c) were updated to reflect nomenclature changes in
referenced citations, and no substantive changes resulted.
See generally Karnas v. Derwinski, 1 Vet. App. 308 (1991).
The Supreme Court has held that everyone dealing with the
Government is charged with knowledge of federal statutes and
lawfully promulgated agency regulations. Fed. Crop Ins.
Corp. v. Merrill, 322 U.S. 380, 384-85, 92 L. Ed. 10, 68 S.
Ct. 1 (1947). The Court of Appeals for Veterans Claims, in
citing that case, has held that 38 C.F.R. § 3.158 is a type
of regulation that is binding on all who seek to come within
[the sphere of VA's service-connected disability benefit
program], "regardless of actual knowledge of what is in the
regulations or of the hardship resulting from innocent
ignorance." Citing Fed. Crop Ins. Corp. v. Merrill at 385.
See also 38 C.F.R. § 3.158 (a), supra.
Since August 1999, there is evidence that mail has been
returned to the VARO from the U.S. Postal Service as
undeliverable, because the veteran "moved, left no
address," and because his "box was closed." The RO
determined, after a number of years of returned mail, and a
search that was deemed fruitless, that the veteran's address
was unknown, and that it was unable to comply with the
Board's February 2000 remand orders that the veteran be
contacted or examined. The Board agrees.
The veteran has left no forwarding address, telephone number,
or means of contact. He has no representative. The RO
attempted a number of contact methods, including an internet
search, a search of VHA's VAMC CAPRI database, VA BDN
database, and VA Stare database. Although the RO notified
the veteran of the importance of keeping his address current
in August 1997, the veteran apparently has not contacted VA
since 1999-well more than 1 year.
Indeed, although VA provided the veteran with over 3 years'
worth of multiple notice letters in a vain attempt to get him
to provide the most basic information that only he possessed,
see Wood v. Derwinski, 1 Vet. App. 406 (1991), he has not
been forthcoming. Not only has he failed to respond to the
RO's request to provide this additional evidence, he has
completely failed to respond at all. So pursuant to
38 C.F.R. § 3.158, and under the facts and circumstances of
this case, the Board determines that the veteran has, in
fact, abandoned his claim. Where the law and not the
evidence is dispositive of the issues before the Board, as in
this case, the claim must fail due to the absence of legal
merit or the lack of entitlement under the law. See Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
Accordingly, the veteran's appeal is denied in its entirety.
ORDER
Service connection for a claimed disability manifested by
right testicular pain is denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge,
Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.